Melendres # 965 - D.Ariz. - 2-07-cv-02513 - 965 - MAR 20 TRANSCRIPT

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 1 of 64
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
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Manuel de Jesus Ortega

Melendres, et al.,
Plaintiffs,
vs.
Joseph M. Arpaio, et al.,
Defendants.
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CV 07-2513-PHX-GMS
Phoenix, Arizona
March 20, 2015
3:34 p.m.
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REPORTER'S TRANSCRIPT OF PROCEEDINGS
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BEFORE THE HONORABLE G. MURRAY SNOW
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(Status Conference)
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Court Reporter:
Gary Moll
401 W. Washington Street, SPC #38
Phoenix, Arizona 85003
(602) 322-7263
Proceedings taken by stenographic court reporter

Transcript prepared by computer-aided transcription

CV07-2513, Melendres v. Arpaio, 3/20/15 Status Conference
A P P E A R A N C E S
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For the Plaintiffs:
Cecillia D. Wang, Esq.

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
Immigrants' Rights Project
39 Drumm Street
San Francisco, California 94111
(415) 343-0775
Stanley Young, Esq.
Hyun Byun, Esq.
Lauren Pedley, Esq.
COVINGTON & BURLING, L.L.P.
333 Twin Dolphin Drive
Suite 700
Redwood Shores, California 94065
(650) 632-4700
Tammy Albarran, Esq.
COVINGTON & BURLING
1 Front Street, 35th Floor
San Francisco, California 94111
(415) 591-7077
Daniel J. Pochoda, Esq.
Joshua Bendor, Esq.
AMERICAN CIVIL LIBERTIES
FOUNDATION OF ARIZONA
P.O. Box 17148
Phoenix, Arizona 85011-0148
(602) 650-1854
Jorge M. Castillo, Esq.
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND
Regional Counsel
634 S. Spring Street, 11th Floor
Los Angeles, California 90014
(213) 629-2512
Andre Segura, Esq.
AMERICAN CIVIL LIBERTIES UNION
125 Broad Street, 18th Floor
New York, New York 10004
(212) 549-2676

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For the Defendants:
Michele M. Iafrate, Esq.

IAFRATE & ASSOCIATES
649 N. 2nd Avenue
(602) 234-9775
For the Defendant Arpaio:
Thomas P. Liddy, Esq.

Senior Litigation Counsel
MARICOPA COUNTY ATTORNEY'S OFFICE
Civil Services Division
222 N. Central Avenue, Suite 1100
(602) 506-8066
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A. Melvin McDonald, Esq.

JONES, SKELTON & HOCHULI, P.L.C.
(602) 263-1700
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ALSO PRESENT:
Deputy Chief John Girvin
Deputy Chief Raul Martinez
For the United States of America:
Lynnette C. Kimmins
Rosaleen T. O'Gara
Assistant United States Attorneys
UNITED STATES ATTORNEY'S OFFICE
405 W. Congress Street, Suite 4800
Tucson, Arizona 85701
(520) 620-7300
For Chief Deputy Sheridan: Lee D. Stein, Esq.
Barry D. Mitchell, Esq.
MITCHELL STEIN CAREY
One Renaissance Square
2 North Central Avenue
Suite 1900
(602) 358-0290

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For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.

DICKINSON WRIGHT, P.L.L.C.
Attorneys at Law
(602) 285-5000
For Executive Chief Brian Sands:
Greg S. Como, Esq.
LEWIS BRISBOIS BISGAARD
& SMITH, L.L.P.
Phoenix Plaza Tower II
2929 N. Central Avenue
Suite 1700
Phoenix, Arizona 85012-2761
(602) 385-1040
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Dennis I. Wilenchik, Esq.

John Wilenchik, Esq.
WILENCHIK & BARTNESS
2810 North Third Street
Suite 103
(602) 606-2810
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For Lieutenant Joseph Sousa:
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David S. Eisenberg, Esq.

DAVID EISENBERG, P.L.C.
2702 N. 3rd Street
Suite 4003
(602) 237-5076
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For Maricopa County :
Douglas L. Irish
Deputy County Attorney
MARICOPA COUNTY ATTORNEY'S OFFICE
222 North Central Ave, Suite 1100
(602) 506-8541

P R O C E E D I N G S
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THE COURT:
Thank you.
This is civil case 07-2513, Ortega Melendres versus
Joseph M. Arpaio and others.
conference.
Please be seated.
This is the time set for status
THE COURT:
Counsel, please announce.
MS. WANG:
Good afternoon, Your Honor.
of the ACLU for the plaintiffs.
Cecillia Wang
With me at counsel table are
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Stanley Young of Covington & Burling, Joshua Bendor of the ACLU
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of Arizona, and Dan Pochoda of the ACLU of Arizona.
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We also have co-counsel on the telephone.
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THE COURT:
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MS. IAFRATE:
Okay.
Michele
Iafrate on behalf of Maricopa County Sheriff's Office and
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Joseph Arpaio.
THE COURT:
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MR. McDONALD:
Good afternoon.
Mel McDonald appearing on behalf of
Sheriff Arpaio on the potential criminal contempt issue.
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THE COURT:
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MR. BIRNBAUM:
All right.
Thank you.
15:35:34
Gary
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Birnbaum appearing on behalf of Deputy Chief John MacIntyre,
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and Deputy Chief MacIntyre's in the courtroom as well.
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15:35:18
With me is Maricopa County Attorney Tom Liddy.
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15:35:04
Good afternoon.
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15:34:49
MR. COMO:
appearing on behalf of Brian Sands.
Greg Como
Mr. Sands is in the
15:35:49

courtroom, as is Dennis Wilenchik.
THE COURT:
MR. EISENBERG:
Good afternoon.
Eisenberg.
for possible referral for criminal contempt.
here in the courtroom.
David
I'm appearing on behalf of Lieutenant Joseph Sousa
THE COURT:
All right.
The lieutenant is
And Mr. Eisenberg, just so I'm
clear, your appearance is new in this matter, is it only a
special appearance or is it a general appearance?
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MR. EISENBERG:
Specially, Your Honor.
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THE COURT:
All right.
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MR. STEIN:
15:36:14
Thank you.
Lee Stein and
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Barry Mitchell specially appearing for Deputy Chief Sheridan,
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who's present in the courtroom.
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THE COURT:
Good afternoon.
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MR. IRISH:
15:36:22
Doug Irish
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from the County Attorney's Office on behalf of Maricopa County,
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pursuant to your invitation.
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THE COURT:
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MS. KIMMINS:
All right.
Good afternoon.
Lynnette
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Kimmins on behalf of the United States, with Rosaleen O'Gara
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specially appearing.
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THE COURT:
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We have appearing telephonically on behalf of the
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15:36:03
15:36:30
All right.
monitor team Deputy Chief John Girvin and Deputy Chief Raul
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Martinez, is that correct?
DEPUTY CHIEF GIRVIN:
DEPUTY CHIEF MARTINEZ:
Yes, Your Honor.
THE COURT:
Do we have anybody else on the
phone?
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All right.
15:37:00
MR. SEGURA:
This is Andre Segura of the ACLU for the
plaintiffs.
THE COURT:
MR. CASTILLO:
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That's correct.
All right.
This is Jorge Castillo from MALDEF with
plaintiffs.
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MS. ALBARRAN:
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Albarran from Covington & Burling on behalf of class
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plaintiffs.
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MR. BYUN:
And this is Hyun Byun from Covington &
Burling for plaintiff.
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MS. PEDLEY:
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behalf of plaintiff.
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Tammy
15:37:17
And Lauren Pedley from Covington on
THE COURT:
Do we have anybody else appearing on the
All right.
Pursuant to the rules of the United States
phone?
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District Court for the District of Arizona, and I've indicated
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this before, recordings are not allowed.
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able to take notes if you wish, members of the audience, I ask
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you to do that in a quiet manner, and anybody who is observed
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recording these proceedings will be ushered out.
15:37:36
So although you're
It's against
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court rules and I request that you not do it.

I noticed up this status hearing and I noticed up the
reasons for the status hearing.
hearing I received, Ms. Iafrate, you're expedited motion for
entry of judgment, and I received, Ms. Wang, your objection to
that motion.
make a few comments.
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After I noticed the status
It seems to me that it will be most -- well, I'll
Obviously, Ms. Iafrate -- I heard a cell phone go on.

Please, everybody, turn off your cell phones.
Ms. Iafrate, obviously your motion was a serious one,
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and it may change everything or it may change a little, but I
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think that we need to go through and explore exactly what some
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of the details of your motion are or may mean, and the reason I
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do that is this.
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vacate the hearing, I'm not going to vacate the hearing until I
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have a signed settlement agreement between the parties, and so
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until then we are pushing forward.
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15:39:02
I realize that the settlement that you may make with

plaintiffs or may not make with plaintiffs in this matter is a
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matter subject to your own individual negotiation, but it
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occurs to me that clarification of a few matters might help you
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both to the extent that it might facilitate understandings and
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negotiations; it will also help you know where I'm coming from.
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15:38:37
I am not -- although you've requested me to
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As it pertains to the possible criminal contempt

proceedings, the United States Attorney's Office has opted out,
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and that leaves me in an unusual situation.
the United States Attorney's opted out is because they
indicated they don't think it's appropriate for a judge to be
involved in a settlement discussion on potential charges, and I
understand their reasoning and I don't criticize it, but I do
respectfully disagree when it pertains to criminal contempt
proceedings.
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One of the reasons
It would have been nice, for that reason, to have

their presence.
I understand and, again, don't criticize their
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withdrawal.
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withdrawal on that basis --
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But in light of the -- in light of their
MS. KIMMINS:
15:40:21
Your Honor, could I be heard just for
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some clarification, if I may?
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THE COURT:
Yes, Ms. Kimmins, but why don't you wait
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until we get there, because we're going to take them item by
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item.
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In light of that apparent declination, and because I
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don't want the civil contempt process to be meaningless, and
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because it doesn't seem to me that it's impossible that a good
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faith resolution by the Sheriff's Office proposed to me could
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satisfy criminal contempt concerns, I think that it is
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appropriate to discuss whether or not I'm going to bring
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criminal contempt charges, and if the United States Attorney
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won't be involved, then, as I've indicated, we can discuss a
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special prosecutor, or to the extent that that's no longer
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CV07-2513, Melendres v. Arpaio, 3/20/15 Status Conference 10
necessary because of the nature of the motion you filed, and at
least its outlines of proposals to which I think I can
adequately respond we can discuss that later in this hearing
and see and if we can get some guidance there.
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That's sort of thinking off the top of my head, but do

you understand where I'm coming from?
And I guess, Mr. McDonald, I'm really asking you, I'm
asking you, Mr. Birnbaum, I'm asking you, Mr. Eisenberg,
because you're the ones that are dealing with the criminal
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contempt matters, so I will discuss that with you later on in
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the hearing, but let's take first things first.
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15:41:49
I did receive notice of a postponement of a
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completed -- of the completion of the underlying investigations
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of misconduct.
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investigations.
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another for Ms. Iafrate.
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And as I've indicated, it seems to me that that postponement
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might merit supplemental hearing or hearings after the April
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proceedings, I don't intend to postpone the April proceedings,
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and my thinking behind that was a little bit similar to what I
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perceive to be some of the plaintiffs' objections, so I'm going
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to state that, and, then Ms. Wang, you can respond, and also
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you, Mr. Como, since you're separately representing in the
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civil matter.
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15:41:36
Well, I shouldn't say that.
Internal
I don't want to characterize it one way or
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That's document 923 on the docket.
It seemed to me that there are internal investigations
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being conducted by the MCSO with respect to potential officer
and command staff misconduct.
conducted by the PSB; some of them have been completed; some of
them are being conducted by Mr. Vogel, who is an independent
contractor to Maricopa County employed for that purpose.
But it does seem to me that because, as I think
Some of those are being
defendants have indicated in their motion, one of the things
that would make logical sense as a result of a civil contempt
is to expand the scope of the present injunction that governs
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the MCSO.
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It also seems to me that I need to know whether or not
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there are adequate self-investigative procedures at MCSO.
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Because the goal of this whole exercise of the injunctive
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period is not simply to punish MCSO or to direct MCSO for a
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three-year period, but it's to ensure that policies,
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mechanisms, and procedures are put in place so that this never
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happens again, and obviously one of those things has to be a
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facility at MCSO to investigate itself and its own officers'
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misconduct.
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monitor's evaluation of how the MCSO has investigated itself
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with respect to the Armendariz allegations and other matters.
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15:43:55
A very important part of that would be the

15:44:19
I have already raised in these hearings my concerns
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about some of those investigations.
I have a few other
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concerns.
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on any self-investigative privilege, I'm going to be careful
Some of those, just because I don't want to infringe

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about talking about today, but there are some process concerns
that I think I can discuss without going into them too deeply.
For example, I've been told that Mr. Vogel's
performance -- my monitor has evaluated that performance, and
while I think that it may be likely that he would be concerned
about some of the potential conflicts and procedural
irregularities relating to the engagement of Mr. Vogel, I think
he has been satisfied, and perhaps even -- this is preliminary,
just based on my conversations with him -- satisfied, and even
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somewhat praiseworthy, of Mr. Vogel's investigation to date.
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However, it is my understanding that Mr. Vogel has
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been directed by the MCSO that he is to provide facts only and
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is not to evaluate those facts.
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facts to somebody at MCSO and they will decide what the facts
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mean, and whether or not there will be any discipline, and what
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that discipline will be.
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since Mr. Vogel has interviewed everyone from Sheriff Arpaio to
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Chief Deputy Sheridan to everyone else.
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there's an inherent conflict there, especially if Mr. Vogel
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can't come to his own conclusions or make any recommendations.
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And he is to provide those
15:45:46
I think that's pretty concerning,
It seems to me like
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But even though I have those concerns and I share them
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with you freely, it gets to the larger point, which is we have
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those investigations, we have all the other investigations,
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some of which are not complete and some of which are, and we
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really don't have a complete evaluation of whether or not there
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has been a fair and capable investigation, self-investigation
of MCSO of itself.
procedure, I think it's completely appropriate that in addition
to whatever other expansion that plaintiffs may seek of the
existing injunction that it include an expansion relating to
MCSO's self-investigative processes.
And if there isn't that facility and that
I kind of read your Exhibit A as suggesting that the
MCSO was open to that, but I don't really know how we flesh
that out in a way that doesn't require the completion of those
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investigations unless you're just going to leave it up to the
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discretion of the Court and the monitor, Ms. Iafrate.
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Do you understand what I'm saying?
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MS. IAFRATE:
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THE COURT:
All right.
So that's a first concern, and
it strikes me that regardless of whatever else happens, we need
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to have adequate relief that relates to that.
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The second concern -- well, and so if in fact you
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can't complete the investigations, I have some dates that I'll
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want to review with you both that will be supplemental
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hearing -- possible supplemental hearing dates for this civil
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contempt after that investigation report is complete.
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also realize that that may be appealed, depending upon what
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discipline may or may not be imposed or suggested by the
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individual persons involved.
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15:47:12
I do.
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And I
I understand that it may be the department's position
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that that results in the privilege of some information.
kind of battled back and forth about the extent of that
privilege before.
sure there is a privilege.
directives to keep it out of the officer's file and some other
things, and I certainly don't want to -- I've treated it as
privileged because I don't want to prevent a vigorous
self-investigation at this point by MCSO.
going to just postpone this hearing forever.
I've read the statute carefully.
We've
I'm not
I do think there are some
But I also am not

And if there
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isn't a privilege, and even if there is an appeal, I'm going to
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consider whether or not all of that information can be
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released.
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15:48:31
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Again, all of that may prove to be irrelevant to the
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extent that you're willing to be open to an unlimited scope of
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the monitor's -- well, I shouldn't say "unlimited," but a scope
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of the monitor's authority to revise and evaluate existing
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self-investigative procedures within the MCSO.
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know that.
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of your language, but I don't know that I understood it
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appropriately.
15:49:04
I just don't
You did suggest that that may be the case in some
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Do you have any comment on that?
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MS. IAFRATE:
Yes, Your Honor.
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with the last question first?
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THE COURT:
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MS. IAFRATE:
You want me to start
Sure.
The intent of Exhibit B to the filing of
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document 948 was intended to offer suggestions and concrete
ideas regarding how best to remedy if Your Honor was to accept
Sheriff Arpaio and Chief Deputy Sheridan's admission of civil
contempt.
of the Professional Standards Bureau that's currently run by
Captain Bailey.
One of the areas that was discussed was the running
One of the things that the Sheriff's Office was
agreeable to was that the monitors may conduct, conclude, and
follow up on the internal investigations regarding these issues
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and what we are calling the spin-off investigations of Deputy
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Armendariz so that would give them free rein to review not only
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what has been done, but also to begin their own investigations
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and to critique the investigations that have been done by PSB.
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THE COURT:
correctly, then, but I guess one of the things that I'm saying
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is would the monitor, in your view, be free under the language
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you propose, or under language you're willing to propose, to
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require policies and procedures that pertain to internal
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investigative processes that currently do not adequately exist
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at the MCSO?
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MS. IAFRATE:
The free-rein pieces concern me a little
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bit, Your Honor, because obviously, I can't anticipate
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everything.
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recommend policies --
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15:50:33
I appreciate that, and I did understand it
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However, would they have the authority to
THE COURT:
Let me just put it this way.
If you're
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going to communicate with plaintiffs about settlement, one of
the things that I'm very interested in, you remember how we
implemented policies for training, for education for officers?
We required that training; we required certain supervision
levels; we required things like that.
I would suggest that you consider discussing with
plaintiffs the implementation of policies and procedures
pertaining to your own internal investigations that currently
do not exist or, if they do exist, are very archaic.
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Is that something -- well, I just point that out.
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MS. IAFRATE:
and say yes, that would be something that we would consider.
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That was your question.
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THE COURT:
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MS. IAFRATE:
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15:52:06
Your Honor, I can stand before you today
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All right.
And it would be a good discussion to
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have with plaintiff.

THE COURT:
All right.
The other thing is I would
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expect that if that was going to happen, the same sort of
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period of compliance would have to exist that the monitor could
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monitor MCSO's ability to self-investigate.
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Do you understand --
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MS. IAFRATE:
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THE COURT:
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MS. IAFRATE:
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THE COURT:
15:52:26
Yes.
-- what I'm saying?

Yes.
All right.
Do you have anything else you
15:52:34

wanted to say on this point?
MS. IAFRATE:
Regarding this issue?
THE COURT:
Ms. Wang, do you want to be heard on this?
MS. WANG:
I actually had read paragraph 4 of Exhibit B to the
Okay.
No.
Thanks.
Your Honor, one question to clarify.
motion to vacate the hearing to provide that the monitor would
actually have coextensive authority over internal
investigations including disposition.
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THE COURT:
I'm not fighting that.
I --
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MS. WANG:
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THE COURT:
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I'm sorry, I thought that was appropriate and that's
I think that's appropriate.
how I understood it, but I was actually talking to Ms. Iafrate
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about something more, which is the beginning of new procedures
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or the creation of procedures and practices within the MCSO
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about how it investigates itself on an ongoing basis so that
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after the monitor leaves we have policies, procedures, and
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practices in place that are adequate.

And so I didn't mean to suggest that I was disavowing
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what I believed to be the sheriff -- the defendants' very
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helpful suggestions as it pertains to this matter in paragraph
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4, if that's what you're saying.
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MS. WANG:
15:53:02
I'm not --
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15:52:46
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15:53:32
Your Honor, I understood what -- the point
that the Court was making.
I actually was seeking
15:53:48

clarification from the defendants --
THE COURT:
MS. WANG:
I apologize.
-- because what Ms. Iafrate just said in
response to the Court's question led me to question whether in
fact they would agree, under paragraph 4 of Exhibit B, to the
monitor actually having the authority to make dispositions of
internal investigations, not merely the ability to have --
THE COURT:
MS. WANG:
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I see.
-- a parallel investigation, which is what
I thought I heard Ms. Iafrate saying.
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THE COURT:
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MS. IAFRATE:
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THE COURT:
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15:54:17
No?
That is not what I said, Your Honor.
Okay.
Well, could you respond to Ms. Wang
so we understand?
MS. IAFRATE:
Well, Your Honor, I think that
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Exhibit B, as set forth, I read it to you, read a portion of it
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to you regarding the monitors, and that was what was proposed.
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Now what I'm hearing you suggest to me is that I have a
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conversation with plaintiffs' counsel regarding this paragraph
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and that it could be expanded further, and I'm saying that MCSO
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is willing to have that conversation.
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THE COURT:
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MS. WANG:
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What I'm asking is:
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15:54:02
All right.
15:54:30
15:54:50
Ms. Wang?
I think there's a misunderstanding.

Is the intent of what's written
in paragraph 4 of Exhibit B that the monitor would have
15:55:02

authority to make dispositions of internal investigations under
your proposal, and not just the ability to have a parallel
investigation and make findings of fact, but the authority to
make a disposition whether a charged misconduct is unfounded,
exonerated, sustained, or not sustained?
MS. IAFRATE:
15:55:26
Your Honor, the paragraph allows the
monitors to either conduct investigations with PSB or separate
from PSB, and so they aren't all parallel; the monitors can do
their own.
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THE COURT:
Let me tell you how -- what I understand
Ms. Wang's question to be, and she can correct me.

There isn't anything in the paragraph as she reads
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it -- and I think she's right -- that says that if, for
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example, the monitor and the PSB conduct a joint investigation,
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the PSB were to determine that -- let's say scenario number 1:
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The PSB were to determine independently that allegations were
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unfounded and the monitor determined that they were founded.
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Whose determination counts?
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MS. IAFRATE:
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conversations going on at once.
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THE COURT:
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MS. IAFRATE:
I'm sorry, Your Honor.
15:56:32
Sure.
So are you saying that they're doing a
parallel investigation or the monitor did a separate
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investigation?
THE COURT:
15:56:05
I have two
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15:55:50
Yeah.
In other words, does the monitor
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have the final word about whether an allegation is founded or
not?
MS. IAFRATE:
THE COURT:
Yes.
Okay.
Does the monitor have the final
word about what discipline should be imposed against an officer
if there is a determination that there is foundation for the
charges?
MS. IAFRATE:
written in Exhibit B.
10
THE COURT:
11
MS. IAFRATE:
That is not how these paragraphs are
Right.
15:56:57
And I thought that that was your
12
question to me, your follow-up question to me:
13
willing to have that conversation with --
14
THE COURT:
15
MS. IAFRATE:
16
THE COURT:
17
15:56:48
Would we be
That was.
-- plaintiffs' counsel.
15:57:04
That was, but I just want to make sure
that it's clear.
18
MS. IAFRATE:
19
THE COURT:
Yes.
Okay.
In addition, my follow-up to you
20
was about ongoing procedures, so that after the monitor leaves
21
this process we have a process in place at MCSO that is up to
22
law enforcement standard and is functioning effectively.
23
MS. IAFRATE:
24
THE COURT:
25
I don't think we need to discuss at this point whether
15:57:11
Yes.
All right.
15:57:25

any privilege applies to internal investigations you've made.
That may come up, but you may be able to resolve it through
negotiation, and I don't think we have to spend a whole lot of
time at this point anticipating problems.
But I will say that we are going to set a supplemental
hearing date and if we don't clear it off, I may raise that,
because if somebody files an appeal, I want to go -- go ahead
with this matter.
I, of course, want to respect a privilege if there is one.
It has been pending for far too long.
10
Ms. Wang.
11
MS. WANG:
Your Honor, I do want to alert the Court
that we began Chief Deputy Sheridan's deposition this
13
morning -THE COURT:
15
MS. WANG:
But
15:58:03
12
14
Yes.
-- and the defense did assert a privilege
16
over matters relating to the independent investigation by
17
Mr. Vogel, to the extent that they instructed the witness not
18
to answer questions about who the principals are in those
19
investigations.
20
dispute to the Court, but I wanted to alert you that that is
21
brewing.
22
15:57:42
15:58:11
I don't think it's ripe yet to bring that
THE COURT:
All right.
15:58:32
I will just indicate to the
23
parties that I have -- I don't know all the possible privileges
24
that you may be asserting.
25
extensively here, and I think that all privileges are to be
I have looked at the statute

15:58:48

narrowly construed and I would -- to the extent I find any
privilege in the statute, and I'm not sure there is one, I will
construe it -- it will be my inclination to construe it
narrowly.
That doesn't mean that I understand all of the bases
on which you've offered that instruction, and I'll certainly
wait and hear what those are if that comes to a head.
Ms. Wang, I have something for you now.
MS. WANG:
10
THE COURT:
Yes, sir.
The monitor has received an e-mail request
11
from the plaintiffs not only for underlying data -- for
12
example, the investigations that he independently conducted,
13
and not only for the material that he has independently
14
received from the MCSO at his request, both of which things I
15
think are fair game for you to ask -- but he's received a
16
request for his work product, since he hasn't yet issued a
17
report on the adequacy of the investigations.
18
15:58:58
15:59:09
15:59:30
I must tell you that I have no inclination to have the
19
monitor give you his work product.
With all due respect, I
20
believe there is a judicial privilege and a judicial immunity.
21
The monitor -- I'm not sure about that, either, just as I'm not
22
sure about the bases on which Ms. Iafrate's going to claim a
23
privilege.
24
and impressions, you're going to have to file a motion with me
25
to get it, because I'm not inclined to have my monitor being
15:59:48
But if you want to have the monitor's work product
16:00:04

deposed about conversations he has with his staff that are --
that are implementing my direction, because I just believe that
there is a judicial privilege and a judicial immunity that
needs to be protected in this matter.
You understand what I'm saying?
MS. WANG:
THE COURT:
MS. WANG:
16:00:20
Understood, Your Honor.

Okay.
I will ask, Your Honor, to the extent that
the monitor is having discussions with defendants and
10
defendants are privy to information through those discussions,
11
we do take the position that plaintiffs should have --
12
THE COURT:
13
MS. WANG:
14
And how that's conveyed I understand the Court is
15
concerned about, since it would be the work product of the
16
monitor.
17
party to all the conversations the monitor has with defendants.
18
That's completely understandable, given how injunctions of this
19
type are carried out.
20
having less knowledge as we come to these proceedings.
21
16:00:32
Well --- the content of those discussions.
16:00:49
But I do feel that plaintiffs, you know, are not
THE COURT:
But it does put us in a position of

16:01:09
I do perceive that occasionally you have
22
been at that disadvantage, and it will be my direction to
23
him --
24
And to you, Ms. Iafrate, Mr. Liddy.
25
-- that if he has such discussions that relate to
16:01:21

anything substantive involving this lawsuit, that they be
had -- that they be shared with both sides.
If you have hesitancy about that, and if it's a matter
that you believe involves privilege or something else that he's
had access to that you don't think the plaintiffs are entitled
to, you should raise it with him and then he'll raise it with
me, I'll let both parties be heard and I'll rule immediately,
if we need to go forward on that basis.
Any problem with that?
10
MS. IAFRATE:
I have a point of clarification, Your
11
Honor.
12
example, when the monitors come and do their site visits --
13
16:01:36
How should that communication be conveyed?
THE COURT:
Yes.
For
Well, if he's having a communication
14
with you and he perceives that this is information that, in
15
fairness, the plaintiffs ought to have access to, I'll have him
16
tell you that.
17
MS. IAFRATE:
18
THE COURT:
19
And by the way, Mr. Como, I haven't forgotten you,
And then you can file an objection.
when I say "plaintiffs" I also mean Chief Sands can have access
21
to that same information.

MR. COMO:
23
THE COURT:
24
MS. WANG:
25
THE COURT:
16:02:06
Very well.
20
22
16:01:51
16:02:17
Thank you, Your Honor.

All right?
Let's talk about compensation for victims
16:02:27

here.
I raised this concern last time, and if you want to
create, as a part of the settlement of this matter in your
settlement discussions, or if you want to request, if this
matter does not settle, Ms. Wang, that this Court create some
sort of compensation fund from which victims of the -- you
know, I don't know -- I don't know how to refer to it, but the
violations of my court's order that were contemptuous, I think
you can do that, but here is my concern.
I do not believe that the mechanism is in place --
10
that would be in place if this was a class action lawsuit --
11
for me to terminate the rights of any potential plaintiffs in
12
this case.
13
plaintiffs can come to you and receive a payment for the
14
surrender of their claims, I suppose -- I can't really think,
15
immediately, of a problem with that, I haven't really thought
16
it through, but the point is I cannot, in this settlement
17
proceeding, preclude any potential victim of the sheriff's
18
contempt.
19
16:03:07
And so if you want to set up a mechanism by which
16:03:26
So, you know, you may well, for example, Ms. Iafrate,
20
in your motion you've suggested funding to the tune of
21
$350,000, and more if necessary.
22
making is I don't see how I can cut off the rights of any
23
potential victim of the misconduct at any particular dollar
24
amount as a part of this contempt proceeding.
25
16:02:47
16:03:44
But I guess the point I'm
Is there any -- you know, there's opt-in and opt-out
16:04:03

procedures that apply to class action; there's notice, there's
all those things.
going to require, as you've suggested, that the department put
forth every effort to identify every possible victim.
not sure that I can preclude any victim from seeking recovery
through a class action or whatever mechanism they may choose,
and they're not going to be bound by this contempt proceeding.
I just don't see how that's a legal possibility.
9
10
I may well require notice.
I'm certainly
But I'm
I just wanted to have that out there on the table.
If
anybody disagrees with that, let me know.
11
MS. WANG:
12
MS. IAFRATE:
16:04:39
We agree with that, Your Honor.

I understand what you're saying, Your
13
Honor.
14
people.
15
But that is one of the primary goals of MCSO since I started
16
with this case.
17
16:04:20
We are working diligently to try to identify these

There are, you know, outlayers that we may never find.
THE COURT:
16:05:09
I appreciate that, and I appreciate the
18
difficulty of being sure you've identified everybody.
As I've
19
indicated, it seems to me that one of the problems with the
20
contempt was because at the time the sheriff believed he could
21
use race as one factor among others in determining probable
22
cause, there may be a number of victims that were stopped and
23
detained and never arrested or -- but were investigated, and
24
that constituted a Fourteenth Amendment violation, and I'm not
25
sure how you find those people.
16:05:21
16:05:43

The other reality is, of course, and this has come out
as a matter that has already been disclosed in open court, so
even though there are some aspects that are being internally
investigated I think I can discuss it, Deputy Armendariz
thought he saw some Hispanic people so he pulled them over and
they turned out to be Korean.
but they're not members of the class, they're Koreans, and the
class is defined as Hispanics.
He still took their passports,
Now, the sheriff still violated the injunction.
They
10
still may have a remedy.
11
going to be through any sort of a fund that you may make --
12
they may have available to pay to the victims who are members
13
of the class, and those are just things that I think you're
14
going to need to think about.
15
the devil's always in the details.
16
17
16:06:00
I'm not sure that that remedy is
16:06:21
They may be small details, but

16:06:37
Then we can discuss the special pros -- the

appointment of a special prosecutor.
18
Ms. Kimmins, you wanted to be heard on that.
19
MS. KIMMINS:
20
THE COURT:
21
MS. KIMMINS:
22
For clarification, the government would like to
Yes, Your Honor.
Please come to the podium.
16:06:56
23
indicate that we do have strong and well recognized interests
24
in ensuring the enforcement of the court orders, and it's
25
something certainly in which the United States is interested in
16:07:15

1
2
doing.
With respect to Rule 42, we wanted to make sure the
Court understood that the U.S. Attorney's Office has not
declined a request or referral of an appointment as a
prosecutor for the potential criminal contempt proceeding,
should that referral be made.
indicate that we were only declining participating in the
settlement negotiations based on the precedence of U.S. versus
Davila and our DOJ policies which are in line with that with
The purpose of our notice was to
10
respect to court-facilitated settlement conferences which could
11
be facilitated either with a district court judge or a U.S.
12
magistrate judge.
13
16:07:55
In line with our DOJ policies, we have guidance that
14
even if the Court is ordering or referring the case for
15
settlement purposes, that could have implications of Rule 11
16
and also Davila, and those are our concerns.
17
16:07:31
16:08:12
At the hearing in February, February 26th, the Court
18
inquired of our office regarding the participation with a
19
private mediator, and we indicated in our notices that we also
20
did not believe that that was something that we could
21
participate in and would respectfully decline with respect to a
22
private mediator, for many of the implications that could be
23
with the Court referring or facilitating the settlement as in
24
Davila, but also as far as the fact that it's the government's
25
position that it would be premature at this point because the
16:08:33
16:08:51

referral has not been made.
Although we do participate in global settlements in
cases, that's usually where we are a party to both the civil
and the criminal matter.
practical considerations involved that we're not in a situation
where we could craft a suitable criminal resolution without
knowing the full extent of the charges, the potential
defendants, that the civil contempt proceedings may clarify
that as they go forward and as the Court determines the
10
11
In this particular case, we have some
remedies and also makes findings.
16:09:27
In addition, as the Court's well aware, this is not a
12
normal situation by any means, and especially not a normal
13
situation that we would be dealing with with criminal
14
prosecutions.
15
us craft any kind of plea negotiations.
16
the Court has indicated that there's a number of issues that
17
the Court would have requirements that would need to be made,
18
and those requirements would, if they're not met, they would
19
preclude a global settlement, and we're not privy to what all
20
of those are.
21
16:09:08
We have no sentencing guidelines that would help

It's a situation where
16:09:45
16:10:08
In addition, the Court has indicated that should this
22
become a criminal matter the Court would recuse themselves,
23
which then leaves us in a situation where we have another
24
judge, and the sentencing itself really becomes, as far as the
25
criminal aspect, is what the sentencing judge contemplates.
16:10:26

In addition, there are considerations regarding
whether or not it would be a jury trial, which again would
determine on whether or not what the sentencing judge would be
contemplating as a sentence.
Most important for the government at this point is we
have not participated and have not begun any kind of criminal
investigation or criminal discovery.
certain items as a result of PACER or documents that have been
provided for us, but the government really has not had an
We've been privy to
10
opportunity, and would not have an opportunity until a referral
11
is made, to conduct their independent investigation.
12
THE COURT:
16:10:44
16:11:02
You know, I really do want to give you an
13
opportunity to have fully stated your position.
14
now done that.
15
MS. KIMMINS:
16
THE COURT:
I think I've
Yes.
16:11:15
Let me just say that although the
17
government and I may disagree about whether or not your
18
participation is appropriate, I certainly respect and
19
understand that you have to make your own calls in that matter
20
and you have adequate justification.
16:11:29
21
But let me also say, let me just state on the record,
22
because I think I need to to proceed, the two or three reasons
23
why I believe that it is not inappropriate for the defendants
24
in this case to make settlement proposals before a charge.
25
I'm not saying I'm going to accept them.
And
And if the defendants
16:11:49

think that, they will learn otherwise.
have made a good faith settlement proposal that merits
consideration.
However, I think they
You've talked about Rule 11, some other things that
pertain to judges' participation in settlement discussions and
how that's not appropriate.
said, a contempt proceeding is a very, very different
proceeding.
brought a charge that has been brought to the grand jury by the
I appreciate that.
But as you
It isn't a proceeding where a grand jury has
10
government; it is a case where the judge decides whether
11
criminal contempt needs to be made necessary.
12
involved in a negotiation process at all, I made the suggestion
14
and hoped that I could recruit you but I respect your
15
determination not to do it.
16
16:12:41
That being said, if I want to, what prevents me from

appointing a special prosecutor for settlement purposes?
18
MS. KIMMINS:
I think pursuant to the rule what the
19
Court would need to do is articulate the interests of justice
20
that --
21
16:12:23
Recognizing that it is difficult for a judge to be
13
17
16:12:04
16:12:55
THE COURT:
Well, I'll tell you what the interests of
22
justice are.
The interests of justice are that if -- well, the
23
interests of justice as I see them are this.
24
reason to believe that the individual defendants in this case
25
may need to be punished pursuant -- and the Court, the
There is real
16:13:08

authority of this Court may need to be vindicated pursuant to a
criminal contempt proceeding.
Nevertheless, at least one of those defendants is a
duly elected official of Maricopa County.
So I have to be
careful about the respect that such an official is due, the
uproar that it causes if in fact a settlement proposal is
tendered to this Court which results in virtually the same
thing that that defendant would -- punishment that that
defendant may receive in a criminal contempt proceeding.
If
10
they offer it up, I don't see any reason to go forward with the
11
process of naming a prosecutor and initiating a criminal
12
contempt proceeding.
13
Now, they may not offer that up.
what it's worth, you've certainly made a good faith proposal
15
towards that end.
16
recommend that proposal, I'll either do it myself or I'll
17
appoint a special prosecutor.
If I'm not going to have you to evaluate and
18
But the interests of justice seem to me to be a sort
19
of respect for the citizens, or taking into account a respect
20
for the citizens of Maricopa County, a desire to avoid
21
unnecessary proceedings if in fact the result can be achieved
22
without those proceedings, and the public good.
24
25
16:13:44
But I do think, for
14
23
16:13:25
16:14:00
16:14:16
Those would be my reasons, and I'm just stating them

on the record.
MS. KIMMINS:
Thank you, Judge.
16:14:32

1
2
THE COURT:
Thank you for allowing me to do that,
Ms. Kimmins.
MS. KIMMINS:
THE COURT:
Thank you.
All right.
I'm going to talk about the
special prosecutor if we need that, but first I'm going to ask
some questions about the criminal contempt proceeding and your
proposals that relate to that.
8
9
First of all, Ms. Iafrate, in your expedited motion

you indicated that MCSO -- well -- I guess I'll get to that
10
later.
11
and Sheriff Arpaio would accept a civil -- acknowledge, they
12
basically acknowledge that they're in civil contempt.
13
You indicated that MCSO chief -- Chief Deputy Sheridan
but I also noticed Chief MacIntyre, Chief Sands, and Lieutenant
15
Sousa.
16
MacIntyre and Lieutenant Sousa, who you represent?
18
16:15:03
But I did individually notice not just those persons,
14
17
16:14:39
What do you propose to do with respect to Chief
MS. IAFRATE:
16:15:24
As far as civil contempt is concerned,
Your Honor?
19
THE COURT:
Yes.
20
MS. IAFRATE:
If Your Honor is not -- does not accept
21
this proposal and accept that Sheriff Arpaio and Chief Deputy
22
Sheridan accept full responsibility, then the hearing would
23
need to continue as to those three remaining individuals.
24
So if this is not a satisfactorily global situation,
25
it would at least minimize the number of issues that would go
16:15:36
16:16:00

forward regarding civil contempt.
you last hearing that we had that you recommended that I --
that I at least attempted to do such minimization as I could,
because, I think in your own words, some of these contempt
issues were already out there.
THE COURT:
MS. IAFRATE:
16:16:20
Yeah.
And so that's what I was attempting to
do if you don't accept it globally.
9
10
And I believe that I heard
THE COURT:
Let me just -- I may have misunderstood
and I don't want to misunderstand.
11
16:16:28
So what you've said is as far as you're concerned, the
12
civil contempt of Sheriff Arpaio, Chief Deputy Sheridan, and
13
the MCSO will stay in place.
14
civil contempt.
15
to Chief MacIntyre, Chief Sands, and Lieutenant Sousa.
They accept responsibility for
However, we would need to proceed with respect
16
Is that what you've said?
17
MS. IAFRATE:
16:16:49
Well, if I could hit the ball out of the
18
park, what I would hope for is that you would accept this what
19
we're kind of fluctuating between calling a settlement and a
20
motion to vacate and the acceptance of responsibility by
21
Sheriff Arpaio and Chief Deputy Sheridan, if you would accept
22
this as a proposal to satisfy the civil contempt as to MCSO and
23
all of the individuals, I would ask you to do that.
24
then the hearing regarding the individuals would need to
25
proceed.
16:17:04
If not,
16:17:24

1
2
THE COURT:
Well, when you say "the individuals," are
you talking about who?
MS. IAFRATE:
Lieutenant Sousa --
THE COURT:
MS. IAFRATE:
THE COURT:
Mr. Como.
MR. COMO:
I'm talking about Chief MacIntyre,
But you're not --
16:17:31
-- and Chief Sands.
And Chief Sands.
Okay.
Thank you.
Well, Your Honor, we would obviously
10
welcome having the entire contempt hearing vacated if the Court
11
accepts the proposal or some variation of that proposal,
12
certainly.
13
THE COURT:
But at this point Chief Sands is not
14
volunteering to take a criminal contempt citation again him
15
himself?
16
17
16:17:42
16:17:58
MR. COMO:
That's correct, nor a civil contempt at
this point.
18
THE COURT:
Okay.
Thank you.
19
Any questions about that, Ms. Wang?
20
MS. WANG:
Your Honor, I confess I am somewhat
21
confused about what exactly the defendants' expedited motion to
22
vacate is at this point.
23
Chief Sheridan and the agency have admitted to civil contempt,
24
they have stipulated to various facts and admitted to various
25
facts contained in Exhibit A, and those actions are not
16:18:12
As I read it, the sheriff and
16:18:42

conditioned on any action to be taken by the Court.
proposed in Exhibit B a number of remedies that the Court could
impose for the civil contempt.
They have
At this point, however, Ms. Iafrate seems to be
describing the expedited motion to vacate the hearing as some
kind of proposal to the Court which needs to be accepted in
order for the admission of liability for civil contempt to
stick.
9
10
11
THE COURT:
Now, let me just, just for clarification
purposes, let me state what I heard Ms. Iafrate say.
16:19:22
I heard her be a good lawyer, and a good lawyer says:
12
We'd like to resolve this globally based on the proposition
13
we've made.
14
will have to proceed as to the other -- the individual three,
15
but I haven't heard her say that Sheriff Arpaio or Chief Deputy
16
Sheridan or the MCSO is going to withdraw their acknowledgment
17
and admission of contempt if the hearing goes forward.
If you're not going to take that, then the hearing
18
Did I misstate that, Ms. Iafrate?
19
MS. IAFRATE:
20
THE COURT:
21
MS. WANG:
22
THE COURT:
23
MS. WANG:
24
THE COURT:
25
16:19:08
other things.
16:19:38
You did not misstate that.
All right.
So --
16:19:54
Thank you for the clarification.

-- does that clarify it for you?
Yes.
Thank you.
All right.
Now, let me ask a couple of
One of the things, one of the bases of
16:20:01

Ms. Wang's objection to going forward is -- or objection to
your motion is she has taken the position that she doesn't know
everybody who may be possible contemnors within the division,
and she doesn't know -- or there has been no acknowledgement
that the sheriff -- sheriff's, shall we say, noncompliance with
this Court's order, was willful, and that it makes a difference
to her in terms of the remedy that she would seek for such
civil contempt whether the violation was willful.
9
10
11
12
So let me ask:
THE COURT:
14
MS. IAFRATE:
Well, Your Honor, now you're getting
I do appreciate that.
And that is -- plaintiffs' counsel is
not a party to --
16:21:00
16
THE COURT:
17
Fair enough, Ms. Iafrate.
18
MR. McDONALD:
19
THE COURT:
20
21
Okay.
Mr. McDonald?
I didn't mean to --
Your Honor --
-- be rude and cut you off, but your point
is well made.
16:21:10
MR. McDONALD:
The answer is no, he's not conceding
22
that it was willful and we don't believe it was willful.
23
saw this remedy --
24
25
16:20:49
into criminal contempt.
13
15
Is the sheriff willing to acknowledge
that his violation of my orders was willful?

MS. IAFRATE:
16:20:20
THE COURT:
We
Let me ask you, Mr. McDonald, just for
purposes of exploring settlement possibilities, when I set
16:21:19

forth the order to show cause, I explicitly left out some facts
of which I am aware that suggest that the sheriff's
noncompliance might have been willful.
forward in this hearing, but I think they're now pretty much
public; they've made available, I think, to most parties, most
of those facts.
I haven't set them
Is there something that might promote the increased
settlement discussion between the civil parties -- I guess this
is really a question for Ms. Iafrate, but I'll ask you:
Does
10
it make a -- well, I'm going to ask Ms. Iafrate first, then
11
I'll ask you:
12
Does it make a difference, Ms. Iafrate, in terms of
13
the defendants' settlement posture, and I'm going to try and
14
explain what I mean here, as if -- is there any difference in
15
the relief that you are willing to extend to plaintiffs based
16
on whether or not the sheriff's noncompliance was willful?
17
16:22:01
16:22:20
In other words, are you willing to assume, even though
18
the sheriff is not admitting it, are you willing to assume, in
19
conducting your negotiations with plaintiff and the remedies
20
that they might seek, that the sheriff's noncompliance was
21
willful?
22
MS. IAFRATE:
23
THE COURT:
24
MS. IAFRATE:
25
16:21:36
16:22:43
If I could back into that, Your Honor --
Um-hum.
-- I believe that the remedies that we
proposed were not only proposal for civil contempt, but also I
16:22:55

heard you in the last hearing that you were alluding to and you
would not accept anything unless the criminal contempt
component was also addressed.
THE COURT:
MS. IAFRATE:
Right.
So yes, the MCSO has assumed that they
are going to be facing both civil and criminal contempt when
they filed this motion to vacate and entry of judgment, the
stipulation of facts, and the proposed remedies.
THE COURT:
All right.
But really what I'm getting to
10
is Ms. Wang's saying:
11
I found out the sheriff's noncompliance was willful than if I
12
found out it was merely irresponsible, or negligent, or
13
whatever you want to call it.
14
your willingness to entertain any changes in the existing
15
consent decree or any other remedies which she might seek, are
16
you willing to assume, without admitting, that the sheriff's
17
noncompliance was willful?
18
19
Look, I might seek different remedies if
MS. IAFRATE:
THE COURT:
21
MS. IAFRATE:
22
THE COURT:
24
25
16:23:30
And so I'm saying in terms of
16:23:52
We assumed that he would face that risk,
Your Honor --
20
23
16:23:11
That's --
16:24:07
-- so yes.
-- that's really not quite the question
I'm asking.
MS. IAFRATE:
Well, but, Your Honor, if I just may,
when fashioning the remedies we considered punitive remedies,
16:24:14

and that was something that you suggested would be necessary.
THE COURT:
Um-hum.
MS. IAFRATE:
And the punitive nature goes to the
criminal contempt.
criminal contempt attorney, but I was instrumental in helping
to fashion this document, and it did assume both criminal and
civil contempt.
8
9
THE COURT:
So I am attempt -- I'm not Sheriff Arpaio's
All right.
Ms. Wang, do you have any
questions?
10
MS. WANG:
11
THE COURT:
12
that, Mr. McDonald?
13
No, Your Honor.

Okay.
MR. McDONALD:
16:24:41
Do you have any concerns about
Your Honor, great effort went into that
14
motion that we submitted to the Court.
15
I mean, there was a lot of discussion, obviously, you wouldn't
16
have been privy to.
17
when you talk about punitive, was there.
Part of the sanctions,

16:24:54
I felt that the $100,000 contribution,
18
THE COURT:
19
MR. McDONALD:
Um-hum.
I think that the public apology was
20
there.
21
community calling applauding that kind of an approach wanting
22
to set something up for this apology.
Interesting enough, that same day I had people from the
23
Your Honor, when we went through this --
24
THE COURT:
25
16:24:30
16:25:12
Let me just say, for what it's worth,
Mr. McDonald, I have some questions about that.
But in terms
16:25:32

of if the sheriff is really paying $100,000 out of his own
pocket, and not from the Sheriff Joe Arpaio Legal Fund, and not
from other sources, I'm very satisfied that that is puni --
that goes a long way towards satisfying a punitive sanction and
it's in good faith.
I'm going to ask you questions about that.
I am very satisfied that in conjunction with that, the
public apology that I might require -- and I will require it
here in this courtroom and I'll probably require it in one
other place and I'll have to approve it -- also goes a very,
10
very long way, as long as I can approve the content and it
11
isn't in any -- there is no effort in it to escape or evade
12
responsibility.
13
That's really not what I'm asking.

slightly more refined question, and that is:
15
civil relief that plaintiffs might be negotiating on the civil
16
side of this case, Ms. Wang has said it makes a difference to
17
her whether or not the sheriff was acting willfully in terms of
18
the remedies they might seek, presumably in terms of an
19
expanded injunctive scope, do you really care if -- if
20
Ms. Iafrate assumes, without conceding, that the sheriff's
21
conduct was willful in entertaining discussions with Ms. Wang
22
that may settle this case?
24
25
MR. McDONALD:
16:26:10
I'm asking a
14
23
16:25:54
In terms of the
16:26:28
16:26:48
If it may settle it, and if there was
not a determination of federal criminal contempt, yes.

THE COURT:
All right.
Now, the other thing I'm going
16:27:08

to raise with you -- the other thing I'm going to raise with
you, I'm going to require that the sheriff make some more
factual statements.
are not many more.
I think they're in the discovery.
There
But one of the things I was considering is if I'm
not -- I want him to understand, this is a long process, and
what it is designed to do is bring the Maricopa County
Sheriff's Office in compliance with injunctive procedures that
will ensure good policing and the constitutional rights of the
10
plaintiffs going forward.
11
16:27:43
I want the sheriff to understand, I want Chief Deputy
12
Sheridan to understand, I want Chief MacIntyre to understand, I
13
want everybody -- and I want chief -- or Lieutenant Sousa to
14
understand, that the fact that I may -- that I will or may be
15
entering civil contempt orders against them will certainly be
16
an -- will be in my consideration if in fact I face any more
17
contumacious conduct in the implementation in any way of my
18
order.
19
16:27:22
16:28:02
I'm not, in the future, unless civil contempt is
20
required, I'm not going to go through this process of having a
21
civil contempt hearing first.
22
contempt hearing, and from my own perspective, a monetary fine
23
may well be insufficient if it was previously insufficient to
24
ensure that my orders are complied with.
25
sure that he understands that on the record.
16:28:20
I'll just order up a criminal
So I'd probably make

That's another
16:28:43

thing I want to talk about.
But we'll get to that later.
MR. McDONALD:
Okay.
THE COURT:
I am concerned with paragraph 9 of Exhibit A only to
the extent I'm going to say that it seems to me -- and again,
there are a few other factual matters that we can discuss if we
actually ever get down to this, that Sheriff Arpaio not only
failed to take steps necessary to ensure that the MCSO complied
with the preliminary injunction, but he did issue directives
Any other questions with respect to that?
10
that violated the injunction, and I indicated those in the
11
order to show cause.
12
releases that the MCSO issued in which he talked about his
13
orders that folks, if they couldn't be given a criminal charge,
14
be escorted to Border Patrol, and there's some other things,
15
but I think I would require that.
16
16:29:27
And I can -- those are some of the press
16:29:48
I would also require an acknowledgment, which I think
17
is pretty clear in the record, that while there were the four
18
or five instances listed in plaintiffs' order to show cause,
19
Sheriff Arpaio himself at trial indicated a number of others in
20
his testimony, and I think that the interviews since then have
21
indicated that through HSU's continuing operations and the
22
operation of the rest of the department, that the violations
23
are likely numerous, and I think that's a quote from one of the
24
command officials.
25
16:29:08
So I think we need to acknowledge that there aren't
16:30:06
16:30:23

just five instances; there are a great number, or at least
potentially a great number.
be the two principal additions, factual additions, in addition
to those matters from discovery that I'd want to talk about.
But if he's willing -- those would
In paragraph 13, I believe that the evidence appears
to be that the confiscated personal identifications and items
of personal property did not uniquely pertain to HSU; that
they -- is there any problem with that, Ms. Iafrate?
9
10
MS. IAFRATE:
No, I would a -- I would agree with
that, Your Honor.
16:31:37
11
THE COURT:
12
Exhibit B, I've already discussed in Exhibit A some of
Okay.
So we would need to change that.
13
the changes that I would think need to be made, but in
14
paragraph -- well, in paragraph 1 I've indicated some of the
15
changes that I would think need to be made in my discussion of
16
Exhibit A.
17
16:32:12
In paragraph 2, as I've indicated, I have no problem
18
if you arrive at a settlement deal that will involve some sort
19
of funding mechanism from which victims can seek recourse, as
20
long as it's clear that I can't terminate the rights of any
21
plaintiffs in this matter.
22
16:30:47
16:32:30
And I just want particularly you, Mr. Irish, to be
23
aware of this.
And I don't know whether the MCSO wants
24
separate representation in conjunction with considering any
25
negotiations that might be arrived at with the plaintiff.
16:32:46

1
2
MS. IAFRATE:
I'm -- I'm the attorney for MCSO, so you meant "MCAO"?
3
4
Your Honor, just so that I'm clear,
THE COURT:
Yes.
I'm sorry.
Thank you for that
clarification.
MS. IAFRATE:
THE COURT:
So I mean the County, Maricopa County.
Yeah.
I thank you for that clarification,
because here's what it comes to.
you propose to request from the County $350,000 to fund this
fund.
10
What if they don't pay it?
I appreciate that, you know,
And what if it ends up being
millions of dollars that are required as a matter of liability?
11
sheriff's independently elected, but the budget is created by
13
the Maricopa County Supervisors.
14
really amounts to a conflict here, but suppose you say you're
15
willing to consider more than $350,000, but all you're really
16
offering me is a proposal that you're asking Maricopa County to
17
fund?
I don't know whether that
16:33:40
And you weren't in this case then, but I've previously
19
indicated to Chief Deputy Sheridan when we were discussing the
20
first injunctive decree, I don't mind if you agree to it, but I
21
don't care whether Maricopa County funds it or not.
22
don't fund it, you will from your budget.
23
thing that I want to talk about.
24
not MCAO needs separate representation in that light.
25
16:33:19
It's sort of an odd situation, and I realize that the
12
18
16:33:01
Mr. Irish?
16:33:54
If they
That's the sort of
And I don't know whether or
16:34:12

MR. IRISH:
May I come forward?
THE COURT:
You may.
MR. IRISH:
Thank you for your invitation.
I'm glad
to be here, although I have to confess this came at us pretty
fast, your invitation on Monday and then the sheriff's proposal
on Wednesday.
I really need to consult with the board.
This is
board-level inquiries.
session on that short notice, and principally, in order to
I haven't been able to get an exec
10
advise the board, I need to know more about what your rulings
11
are, because -- well, I can say some things in general.
12
thing being done, not only for the people who have been
14
injured, but also for the taxpayers on whose behalf the board,
15
and therefore I, speak.
16:35:11
So in some way, limited way, we think that the County
17
should have some representation, but because the issues of
18
police practices and policies are beyond the scope of what we
19
do, we really don't want to become a party to full-blown
20
litigation.
21
16:34:51
First, certainly the County fully supports the right
13
16
16:34:30
16:35:36
Much of the County's position, I anticipate, with
22
regard to your inquiry, and what its role might be, will depend
23
on your findings and your rulings, and then I hope I'll have
24
enough information to advise the board.
25
give an example, because it's exact -- you put your finger on
And if I am, let me

16:35:53

it just a moment ago.
Suppose you approve the sheriff asking the board to
reserve certain funds as compensation for these people.
Depending on the facts and your findings, what if the board
says, No, contempt citations are not part of the taxpayers'
responsibility, and I think that's one of the questions that
you pose.
about that, but one of the questions if that happens is:
the County, as a legal matter, have liability for financial
I haven't had time to talk to them in exec session
10
responsibility for contempt citations?
11
to that.
You may civil contempt citations.
13
MR. IRISH:
Pardon me?
14
THE COURT:
You mean civil contempt citations or
15
criminal contempt citations?
16
MR. IRISH:
16:36:45
Either or both, I don't know where we're
going to end up; that's one of the questions.

So what I can say to you is if the County does have
19
financial responsibility for whatever sanctions you impose,
20
whether you call them criminal or civil, resulting from
21
contemptuous behavior, then I think the next question is:
22
do we go about resolving those claims?
23
16:36:33
In large part -THE COURT:
18
Does
I don't know the answer
12
17
16:36:09
THE COURT:
16:37:02
How
You know, I don't -- you've been very
24
polite, Mr. Irish, and I don't mean to be impolite, but I would
25
make this observation:
At the end of the day, the County is
16:37:19

going to be holding the bag.
mean, if the victims here sue for 1983 violations that are done
by the Sheriff's Department, they're -- and to the extent that
there may be liability found, the County will pay.
me that really the issue is, maybe to be more direct, is the
County going to take that from the sheriff's budget or are they
going to take it from some other pot?
8
9
10
That's part of the problem.
It seems to
And I assume that you're talking about that same

analysis may apply to whether or not you're willing to fund
some sort of a mechanism in this contempt process.
11
MR. IRISH:
16:37:52
I'm not sure that I'm able today to
12
concede the points you make about County liability, because the
13
County may not be liable for willful contempt sanctions as
14
distinguished from injuries, and if they get merged --
15
THE COURT:
Well, and --
16
MR. IRISH:
-- together, I don't know the answer to
THE COURT:
-- I certainly don't mean to prejudice the
17
18
16:38:10
that.
19
County's ability to raise that argument in any way.
20
you're going to have a -- it will be interesting in terms of
21
liability that the sheriff incurs for the County in his conduct
22
under the color of state law.
23
MR. IRISH:
Okay.
24
THE COURT:
And he certainly was the sheriff at that
25
16:37:40
time in which he did what he did.
However,
16:38:20
16:38:34

MR. IRISH:
Whether he was, in being contemptuous --
THE COURT:
And that's a matter of 1983 law; it's
really not a matter of state law.
MR. IRISH:
Yeah, but whether he was -- yes.
But
whether, in being contemptuous, there was willfulness and
intentionality, may raise the question whether he was acting
within the scope of his position.
THE COURT:
All right.
MR. IRISH:
And that's -- that's --
10
THE COURT:
I understand your position better.
11
12
right.
16:38:49
All
Thank you.
MR. IRISH:
So but the point is, if we get to the
13
point the County has got to look at compensation and paying it,
14
then the mechanics for doing it, the County is skilled and
15
experienced in settling class actions, personal injury claims,
16
and we think to that extent that's something that ought to be
17
handled in some separate way so we don't have a room full of
18
very expensive lawyers doing something that can be worked out
19
in the, you know, usual claims resolution process.
20
management people do that with claims all the time.
21
16:39:02
16:39:13
The risk
16:39:33
So if we're going to be paying for it, we'd like to
22
have it separated from a thousand lawyers getting involved with
23
that, because it's going to be the County and the claimants
24
that -- and the merits -- the validation of their claims and
25
the evaluation of a resolution, and I think we can save time
16:39:55

and a lot of money by doing it --
THE COURT:
Well --
MR. IRISH:
-- some way.
THE COURT:
And also settlement may be to your --
MR. IRISH:
Okay.
THE COURT:
-- advantage.
16:40:04
You may desire to
participate in this settlement discussion because that, too,
may be to your economic advantage, and if you're skilled at
knowing that, I assume you're skilled at evaluating that.
10
just wanted to raise that so that you could be involved in this
11
and know that matters that may pertain to you are going on, so
12
I appreciate your being here.
13
MR. IRISH:
Thank you.
14
resolution.
15
you're going to go on it.
16:40:12
And a class action may be the
I just don't know, Judge.
I need to know where

16:40:26
16
THE COURT:
All right.
17
MR. IRISH:
Thank you.
18
THE COURT:
Thank you.
19
It does seem to me, just as I'm looking at things in
20
paragraph 2A, that the length of detention certainly would be a
21
basis on which you could make out an appropriate reimbursement
22
decision from the pot.
23
be other factors that should be considered.
24
would appear that a number of such persons may have had their
25
property confiscated, such as personal identifications and
16:40:37
But it also seems to me that there may

For example, it
16:40:56

other things.
account.
I think that that ought to be taken into
Mr. McDonald, again, although I'm being frank with
you, I do recognize that the sheriff's position is one that's
set forth in good faith and provides a basis worthy of
discussion about whether or not I should bring criminal
contempt charges.
don't mean to be offensive to the sheriff, but he has made a
number of choices, which I believe as the sheriff of Maricopa
16:41:17
But I think I've made it clear, and again, I
10
County he's entitled to make, that have cost, again, the
11
County, money, because, for example, he decided he didn't want
12
to hold the community meetings, and so I had the monitor hold
13
the community meetings and the County's paying the bill for
14
that.
15
to consider about whether or not we have to proceed with
16
criminal contempt is whether or not this provides some,
17
frankly, personal punishment to the sheriff, to the extent that
18
he may merit it.
16:41:34
And it seems to me that one of the things that I'm going
19
I do think, frankly, that a hundred thousand dollars
20
is enough money, if it's coming out of his pocket, but I want
21
it coming out of his pocket and I don't want it coming out of
22
the Sheriff Joe Arpaio Legal Fund or any other fund from whom
23
he has solicited.
24
Are you going to make any representations about that?
25
MR. McDONALD:
Judge, I couldn't make representations,
16:41:53
16:42:10
16:42:26

other than the fact that I believe the fair thing would be to
allow both personal but also people to help.
and the number was decided upon, his annual income a year is I
think 102,000, and that's not including taxes.
When we went in
Mistakes have been made and he's stepped forth and
16:42:48
done that, but to take a year of his gross income and say that
is going to be the penalty, one of the things that I looked at
when we were going through this was the cost of defense if he
was referred for criminal contempt, the cost of trial.
I have
10
no doubt that some of that money would be coming from his
11
personal funds, but also I believe that some of the money would
12
come from friends and supporters of his, which I think would be
13
helpful and necessary to him also.
14
the money to be able to dip in and take a hundred thousand
15
dollars out of his own pocket.
16
THE COURT:
16:43:08
I don't know that he's got
16:43:28
Well, I don't know, and certainly as a
17
public official I understand that he has a limited income.
18
am also under the impression that he has made -- and this may
19
be a misimpression, I acknowledge, that he has had significant
20
sources of other income over the years from his books and other
21
things.
22
MR. McDONALD:
that, and the proposal, when we submitted the proposal I
24
thought it was -THE COURT:
16:43:41
Honestly, Judge, I hadn't gone through
23
25
Well --
16:43:50

MR. McDONALD:
THE COURT:
-- exceptionally positive and --
Please be -- and again, I've said a
hundred thousand dollars is a number, is a fine number.
more than the number, I'm interested in sending a message to
the sheriff, and to Chief Deputy Sheridan, and/or anybody else,
potentially, that comes from them having a little skin in the
game, and I don't know that they've had skin in the game yet.
8
9
MR. McDONALD:
But
Judge, let me just, from my
perspective, we have -- if I can provide some of the
10
confidential communication, we know that your control over this
11
case is continuing.
12
sheriff know the potential power for the contempt.
13
Since I've been on this case in December, we have been

looking at remedies, ways to implement this program, the whole
15
idea of a settlement.
16
think every perception that people have of this sheriff, with
17
that document that we filed earlier this week, hopefully
18
dispels a lot of that.
We have gone in, the public apologies, I
He's willing to make that public apology.
willing to go before other people in open court and acknowledge
21
that serious mistakes were made.
22
Your Honor, I'm convinced, in meeting with the staff, that he
23
wants this order to be enforced; that he wants to implement the
24
safeguards.
He is on the page.
16:44:58
He's
20
25
16:44:35
Mr. Sheridan, Chief Sheridan and the
14
19
16:44:07
16:45:18
I avow,
We have been bantering forth different ideas.
One of the arguments, ideas we had, I would be happy
16:45:36

to serve on something to make sure we monitor this.
We meet
every two weeks.
in.
and satisfy the monitor that these changes are in good faith
being made.
over their head, and they understand it and they take it
serious.
Let's find out if we're getting these reports
Let's get an accountable system so that we can satisfy you
They will always have that club that you've got
Judge, I am convinced that Sheriff Arpaio and
Chief Sheridan and those that are connected with the department
10
are serious wanting to get this behind them and to move
11
forward.
12
seen, the constant meetings and the pressure of this.
13
to be able to go forth and let them fill their law enforcement
14
function.
15
16:46:16
This hearing is disrupting the office like I've never

We want
So your ideas, with the Internal Affairs types of
16
investigations working with the monitor, you've got people with
17
receptive ears, and I can tell you that the sheriff is there
18
and he's committed to it, and Sheridan is committed to it and
19
the other people in the chain, in the hierarchy, are committed
20
to it, and we want to be able to prove to you that we mean
21
business, and that there will not be a violation of your orders
22
as has happened in the past several years.
23
get it right this time and will do whatever it takes to
24
accomplish that.
25
16:45:56
THE COURT:
16:46:34
16:46:51
They are going to
Mr. Stein, do you have anything you want
16:47:06

to say?
MR. STEIN:
No, Your Honor.
THE COURT:
Do you have anything you want to say?
MR. COMO:
THE COURT:
MR. EISENBERG:
Not with respect to the civil
THE COURT:
Oh, I'm not talking about civil settlement
now; I'm talking about criminal proceedings.
16:47:27
11
MR. EISENBERG:
12
The position of my client is that if this matter is
13
Then I will, Your Honor, thank you.
referred for criminal contempt, he --
14
15
THE COURT:
I'm sorry.
I can't hear you,
Mr. Eisenberg.
16
MR. EISENBERG:
16:47:37
If the matter is referred for criminal
17
contempt, Your Honor, his position is going to be that he's
18
going to fight that, he's not going to admit to contemptuous
19
action, because in his view, he did not operate willfully in
20
violation of the Court's order.
21
line.
22
16:47:17
settlement and discussions that have gone on so far.
9
10
Mr. Eisenberg, do you have anything you
want to say?
7
8
No, Your Honor.
So that's looking down the
16:47:53
I can't control the outcome of this with respect to
23
civil contempt; I think that's really up to the County and the
24
people that represent the County and the Sheriff's Office.
25
as I stand here today, my client is not prepared to admit to
But
16:48:11

any criminal contempt.
THE COURT:
MR. BIRNBAUM:
THE COURT:
MR. BIRNBAUM:
THE COURT:
microphone?
8
9
Mr. Birnbaum?
Well, Your Honor, on behalf of --
Do you know what, Mr. Birnbaum?

I'm sorry.
16:48:25
Could I get you to speak into a
Thank you.
MR. BIRNBAUM:
I'm sorry.
On behalf of Chief
MacIntyre, Your Honor, I don't have anything substantively to
10
add, but you have suggested in your comments a number of things
11
that I think the parties perhaps should consider.
12
Chief MacIntyre will not stipulate -- as you know,
13
he's also an attorney -- he will not stipulate that he was in
14
contempt of any court order.
15
contempt --
We don't believe he was in

16:48:54
16
THE COURT:
17
MR. BIRNBAUM:
Civilly or criminally?
No, we don't believe he was civilly or
18
criminally in contempt.
19
discovery that has gone on simply confirms that in those areas
20
that you've identified specifically, Jack MacIntyre neither had
21
the authority to take actions of the type you're concerned
22
about properly, nor did he have responsibility for any such
23
action, nor did he do anything in contempt of the Court's
24
orders.
25
16:48:33
Your Honor, we believe that the
Now, with respect to the notion of settlement, Your
16:49:05
16:49:26

Honor, I think there have been a few suggestions.
Is Chief
MacIntyre willing to stipulate to certain facts if they are
helpful or necessary as part of an overall settlement?
is.
Yes, he
Is he willing to acknowledge, as you've suggested in
talking to others, that in the event of some future violation
of your ultimate order, order on settlement, if there is one,
that in the event of any such violation by anyone, including
Chief MacIntyre, that your intent would be to proceed directly
10
with contempt, or perhaps even criminal contempt, we certainly
11
would acknowledge that, Your Honor.
12
a line where you then say:
13
acted contemptuously?
14
don't think it's true.
15
Well, are you prepared to agree you
And the answer to that is no, because we
And I appreciate the opportunity to tell you this,

Your Honor, because that's the reason why we were not part of
17
the motion that's before you, because the way we read it, Chief
18
MacIntyre would have been asked, as the sheriff, MCSO, and
19
Chief Sheridan has, to admit violation of a court order on his
20
own behalf, and we're not prepared to do that, Your Honor, and
21
we don't think there's evidence to support such a violation.
22
Thank you for the opportunity to say that.
23
THE COURT:
25
16:50:08
But I think that there is
16
24
16:49:45
16:50:29
16:50:52
Mr. Wilenchik, do you have anything you
wish to say?
MR. WILENCHIK:
Nothing now.
I can't even remember
16:51:07

the question, Your Honor, so I apologize.
should there be a criminal contempt proceeding, is that the
question?
THE COURT:
That's all right.
But if you're asking
What I'm asking,
Mr. Wilenchik, is:
Is your client willing -- if I'm going to
consider not bringing a criminal contempt proceeding against
individually named contemnors, I think I've indicated, and I do
view Sheriff Arpaio as the principal party here, but it does
seem to me that the evidence also may point to your client in
10
terms of someone who had knowledge of this order and who defied
11
it.
12
MR. WILENCHIK:
13
THE COURT:
14
16:51:46
Okay.
And I want to know if, when I talk about
the skin, the personal skin --
15
MR. WILENCHIK:
16
THE COURT:
Oh, okay.
16:52:00
-- that I expect Sheriff Arpaio to have in
17
the game, and I'm very interested in what his personal skin is
18
and not just that of his friends and others, I want to know if
19
you've talked to your client about any settlement position in
20
this regard.
21
16:51:20
MR. WILENCHIK:
16:52:14
Yes.
I'll repeat what Mr. Birnbaum
22
said in part, but I'll keep it brief.
We also declined to be a
23
part of that agreement, obviously.
24
that former Executive Chief Sands intends to put in this unless
25
the Court orders it for some reason that I can't fathom right
There is no personal skin
16:52:28

now after the evidence is heard.
hearing, any hearing, and to have him testify.
privilege, as we did before.
produced which they've objected to also, you might note, last
week, and I don't think our position could be any clearer,
Judge.
THE COURT:
Okay.
MR. WILENCHIK:
THE COURT:
We're happy to have the

We waive the
We've asked for documents to be
Thank you.
Thank you.
All right.
It does seem to me,
10
Mr. McDonald, for what it's worth, although I've indicated a
11
desire to settle all matters globally, it's conceivable to me,
12
well, that the civil contempt matter can be settled through
13
discussions, and that does not dictate my determination on the
14
criminal contempt proceeding.
15
But I do want to know, I do want to say that I'm not
16
going to be unreasonable, but -- I'm not going to unreasonable,
17
and I do recognize that you've offered some very reasonable
18
suggestions.
19
believe in order to satisfy the purposes of calling off a
20
criminal contempt hearing, I'm going to have to be personally
21
satisfied that there is some sacrifice by your client, and,
22
Mr. Stein, by yours.
23
16:52:45
16:53:09
16:53:33
But my concern, I think as I've said it, is I
16:53:56
But I do want to say, I do think I should say, that in
24
allocating that responsibility, and I am concerned about the
25
contempt to which Chief Deputy Sheridan has acknowledged in
16:54:18

terms of notifying the department of the order that we agreed
to to try to preserve evidence in this matter.
the difference in authority between Sheriff Arpaio and Chief
Deputy Sheridan.
things, when I went to a town meeting I noticed -- and it was a
contentious town meeting -- I did notice that Chief Deputy
Sheridan was there.
contemptuous behavior, he acknowledged it quickly, at least.
And so in terms of the allocation of the amount of skin I'm
I do recognize
And I've also noted when I have observed
And while I do think he engaged in
10
going to expect in the game, I expect more from Sheriff Arpaio,
11
and that's just the way it is.
12
16:55:03
I also would say that when I happened to drop in on
13
the Maricopa County Sheriff's Office unannounced to observe the
14
training, I happened to drop in on a session where Chief Deputy
15
Sheridan was in attendance.
16
on behalf -- on the part of Chief Deputy Sheridan.
17
think that his actions were contemptuous and he admits it, I
18
think that there is less of a concern, or less of a requirement
19
that he have skin in the game than Sheriff Arpaio have skin in
20
the game.
21
16:54:47
So I do recognize some good faith
16:55:24
And while I
16:55:46
I think I've said enough about what I would expect to
22
see from -- if you want to have a settlement of the criminal
23
proceeding.
24
parties about what they need to do if they want to settle the
25
matter civilly.
I think I've provided enough guidance to the
16:56:01

1
2
Does anybody have any questions or any purpose that

this hearing can serve in terms of going forward?
MS. WANG:
No, Your Honor.
MS. IAFRATE:
THE COURT:
No, Your Honor.
All right.
Thank you for the time.
Well, let me just make clear,
then, that the schedule remains the same, and we will proceed
under that schedule.
or part of the matter, let me know it and we will act
accordingly.
10
Mr. Stein.
11
MR. STEIN:
If in fact there is a settlement of all
16:56:39
Your Honor, I guess I wonder whether, in
12
light of the motion that we filed and the discussion we've had
13
in court today, whether it's now time to reconsider whether
14
some judicial involvement is appropriate to help us get to the
15
next step, whether that's the appointment of a magistrate or
16
whether Your Honor would be willing to participate as a -- in a
17
settlement capacity.
18
THE COURT:
16:56:56
Well, I don't think -- I mean, I think
19
I've gone about as far as I'm willing to go to facilitate
20
settlement in this matter, because I am keeping hold of the
21
civil contempt matter.
22
16:56:21
16:57:12
I think as Ms. Iafrate has -- and I think also
23
Ms. Kimmins has accurately stated, if this matter goes for
24
criminal contempt proceeding, because my monitor has been
25
involved in the evidence and even in the production of some
16:57:29

evidence, I don't believe it's appropriate that I sit as a
judge on the criminal contempt matter.
But I do intend to maintain the rights to hear the
criminal contempt matter, and I will also be making -- the
civil contempt matter, thank you -- and I will also be the one
who decides whether or not I refer this matter to criminal
contempt and then I recuse.
8
9
16:57:48
I think I've done about as much in open court as I

care to to settle this matter.
If the parties believe that it
10
would facilitate settlement to appoint a magistrate, a federal
11
magistrate judge, I will go talk to a federal magistrate judge
12
and see if any has time on their schedule.
13
But the problem that you'll have with that is I don't
14
think there's very many federal magistrate judges who have the
15
time to get up to speed on this case very quickly.
16
more than happy to do it.
17
busy people.
18
they do, but it usually takes six weeks to get a settlement
19
conference.
20
But I'm
16:58:05
16:58:21
I will tell that you that they're
They're very good people, they're good at what
If you think one would be helpful, I'll go ask if
21
somebody's available next week.
22
Mr. Stein, you're going to have to do that much sooner than
23
later.
16:58:38
But in order to be practical,
That's my only thought.
24
Anything else?
25
MR. EISENBERG:
Yes, Your Honor.
I have a question
16:58:56

for you.
I was looking at the transcripts of previous hearings
in which the Court discussed the privileges, various privileges
including the attorney-client privilege.
Mr. Stein and the Court engage in the potential pro-settlement
discussions, it dawns on me that if there are issues of
privilege that I think should be litigated on behalf of my
client, I'm not sure of the forum to go to, and they may be
helpful with respect to any settlement discussions.
10
In listening to
I am aware of the use of magistrate judges in some
11
cases for settling issues.
12
privilege attaches or whether it has been waived, so that I
13
could offer -THE COURT:
15
hearing on that next Friday.
16
You're new to the case.
17
Friday.
18
next Friday, 2 o'clock.
19
MR. EISENBERG:
20
THE COURT:
22
23
24
25
Friday.
16:59:28
This would be more of a whether a
14
21
16:59:09
Well, I will tell you that I'm having a

You may not be aware of that.
16:59:44
I'm having a hearing on it next
If you want to be heard on it, file and get in here
Anything else?
All right.
See you next
Thank you.
(Proceedings concluded at 5 o'clock p.m.)
16:59:58

1
2
C E R T I F I C A T E
3
4
5
6
7
I, GARY MOLL, do hereby certify that I am duly
appointed and qualified to act as Official Court Reporter for
the United States District Court for the District of Arizona.
10
I FURTHER CERTIFY that the foregoing pages constitute
11
a full, true, and accurate transcript of all of that portion of
12
the proceedings contained herein, had in the above-entitled
13
cause on the date specified therein, and that said transcript
14
was prepared under my direction and control.
15
16
17
18
DATED at Phoenix, Arizona, this 24th day of March,

2015.
19
20
21
22
23
24
25
s/Gary Moll

Melendres # 965 - D.Ariz. - 2-07-cv-02513 - 965 - MAR 20 TRANSCRIPT

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Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 1 of 64

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Manuel de Jesus Ortega

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE G. MURRAY SNOW

Proceedings taken by stenographic court reporter

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 2 of 64

For the Plaintiffs:

Cecillia D. Wang, Esq.

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 3 of 64

Michele M. Iafrate, Esq.

For the Defendant Arpaio:

Thomas P. Liddy, Esq.

A. Melvin McDonald, Esq.

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 4 of 64

For Deputy Chief MacIntyre: Gary L. Birnbaum, Esq.

Dennis I. Wilenchik, Esq.

For Lieutenant Joseph Sousa:

David S. Eisenberg, Esq.

For Maricopa County :

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 5 of 64

This is civil case 07-2513, Ortega Melendres versus

Joseph M. Arpaio and others.

This is the time set for status

Counsel, please announce.

Good afternoon, Your Honor.

of the ACLU for the plaintiffs.

With me at counsel table are

Stanley Young of Covington & Burling, Joshua Bendor of the ACLU

of Arizona, and Dan Pochoda of the ACLU of Arizona.

We also have co-counsel on the telephone.

Good afternoon, Your Honor.

Iafrate on behalf of Maricopa County Sheriff's Office and

Sheriff Arpaio on the potential criminal contempt issue.

Good afternoon, Your Honor.

Birnbaum appearing on behalf of Deputy Chief John MacIntyre,

and Deputy Chief MacIntyre's in the courtroom as well.

With me is Maricopa County Attorney Tom Liddy.

Good afternoon, Your Honor.

appearing on behalf of Brian Sands.

Mr. Sands is in the

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 6 of 64

courtroom, as is Dennis Wilenchik.

for possible referral for criminal contempt.

here in the courtroom.

I'm appearing on behalf of Lieutenant Joseph Sousa

And Mr. Eisenberg, just so I'm

clear, your appearance is new in this matter, is it only a

special appearance or is it a general appearance?

Specially, Your Honor.

Good afternoon, Your Honor.

Barry Mitchell specially appearing for Deputy Chief Sheridan,

who's present in the courtroom.

Good afternoon, Your Honor.

from the County Attorney's Office on behalf of Maricopa County,

pursuant to your invitation.

Good afternoon, Your Honor.

Kimmins on behalf of the United States, with Rosaleen O'Gara

We have appearing telephonically on behalf of the

Case 2:07-cv-02513-GMS Document 965 Filed 03/24/15 Page 7 of 64

Martinez, is that correct?

DEPUTY CHIEF GIRVIN: